In this claim, claimant seeks damages from the State resulting from her
prosecution, conviction and sentencing, and the subsequent vacatur of her
conviction and dismissal of the indictment against her, for certain crimes
arising from a quadruple homicide which occurred in December, 1989, in Dryden,
New York.

Claimant had originally set forth numerous causes of action in her claim
against the State. In response to a dismissal motion brought by the defendant,
this Court, by an Order filed February 17, 1999 (see Order to Motion No.
M-56122), dismissed several of those causes of action upon various grounds, and
retained three causes of action, to wit: (1) unjust conviction premised upon
Court of Claims Act § 8-b, (2) malicious prosecution and (3) negligent
hiring, training and supervision.

Following completion of discovery, the parties separately moved for summary
judgment on the issue of liability. In a Decision and Order dated September 29,
2004[1], this Court dismissed the unjust
conviction claim under Court of Claims Act § 8-b. Furthermore, at the
outset of trial, the parties stipulated that the cause of action based upon
negligent hiring, training and supervision was limited solely to the issue of
negligent supervision.

Accordingly, this decision will address the remaining two causes of action, to
wit: (1) malicious prosecution and (2) negligent supervision. Since the
trial of this claim was bifurcated, this decision deals solely with the issue of
liability on each cause of action.

BACKGROUND

On the morning of December 23, 1989, New York State Police Trooper John J. Beno
responded to the report of an alarm sounding at a residence located at 1886
Ellis Hollow Road in the Town of Dryden, Tompkins County. When he arrived at
the premises at approximately 7:20 a.m., Trooper Beno observed one set of
vehicle tracks in freshly fallen snow, leading away from the garage and across
the lawn. After examining the exterior of the premises, and receiving no
response when he rang the doorbell, Trooper Beno entered through a garage door
and encountered a house full of smoke. He immediately radioed his barracks,
requesting assistance.

As he continued his search of the house, Trooper Beno located a burned body in
the master bedroom. Shortly thereafter, officers and firefighters discovered
three additional bodies in another upstairs bedroom.

Ultimately, it was determined that the body in the master bedroom was that of
15-year-old Shelby Harris, and the other burned bodies were those of her
parents, Warren and Dolores Harris, and her younger brother Marc. It was later
determined that all four victims died as the result of gunshot wounds, and that
Shelby Harris had been sexually assaulted.

A massive manhunt immediately ensued with more than 50 investigators eventually
assigned to this investigation. Several objects were recovered from the crime
scene, including a metal gas can. Law enforcement officials theorized that
following the murders of the Harris family, the murderer or murderers set fire
to the house in an attempt to destroy any evidence. Investigators suspected
that gasoline from this can had been used as an accelerant, and therefore the
can was inspected and tested in attempts to obtain fingerprints, which might
lead to the identification of a suspect or suspects.

Later that morning, the Harris family van was located in a bank parking lot at
East Hill Plaza, approximately five miles west from the Harris home. Based on
this discovery, investigators believed that this van had been used as the
getaway vehicle after fires were set[2] in the
Harris home. Three days later, State Police received information that an
attempt had been made to withdraw cash at various ATM machines in Tompkins
County using bank cards belonging to the Harrises. State Police also learned
that credit cards in the name of the Harrises were used for purchases at
different shopping malls in Cayuga and Onondaga Counties, and that these
transactions had all occurred on December 23, 1989. Based upon information
provided by witnesses, the State Police prepared composite sketches of two
individuals who were seen using these cards, a young adult black man and a
middle aged black woman. Within several days, these composite sketches were
distributed to the media in hopes of generating potential leads in identifying
the suspects.

Among the many calls and leads received from the public, the State Police
obtained a sworn statement from H. Dean Sutphin, a professor at Cornell
University who at the time resided on Ellis Hollow Road, approximately 3.9 miles
west from the Harris home (and one mile east of the parking lot where the Harris
van had been found following the homicides). In a statement given to the State
Police on January 8, 1990, Mr. Sutphin stated that on December 23, 1989, at
approximately 6:50 a.m., he was exiting his driveway when he saw a slow-moving
van approaching his driveway from the east. Mr. Sutphin identified the driver
of this van as a light-skinned black male wearing a stocking cap, and further
stated that he was accompanied by a female passenger, also light-skinned but
darker than the driver, who appeared older than the driver. He indicated that
his description of the occupants of the van matched the composite sketches of
the suspects which had been publicized by the news media.

The police also received several calls identifying Shirley Kinge, the claimant
herein, as a person who fit the description of the woman who had used a credit
card belonging to Dolores Harris. The State Police therefore began to focus on
claimant as a potential suspect. During the course of their investigation,
State Police learned that claimant had an adult son, Michael Kinge, and also
that she was employed at the Peregrine House, a bed and breakfast in the City of
Ithaca. On January 30, 1990, David Harding, an investigator with the State
Police and a member of the Bureau of Criminal Investigations Identification
Unit, went undercover by posing as a guest at the Peregrine House, where he was
able to meet with Shirley Kinge.

A short time later, on February 3, 1990, Investigator Harding advised Senior
Investigators David McElligott and H. Karl Chandler that he had matched
claimant’s fingerprints to two latent fingerprints that he had lifted from
the metal gas can found at the murder scene.

Also on February 3, 1990, Professor Sutphin met with Senior Investigator
Chandler to revise his sworn statement with regard to his sighting of the
van on December 23rd. Although he remained convinced that he had observed
a van that morning, he now believed that his sighting might have occurred at a
somewhat later time, possibly between 7:10 a.m. and 7:30 a.m. Additionally,
after reconsideration, Professor Sutphin could no longer definitively state that
he actually saw the particular occupants (a black man and older black woman) in
the van on that date, as he had previously stated.

Based upon available evidence, a search warrant was obtained, authorizing a
search of the duplex property at 520 Etna Road, Dryden, New York, where Michael
Kinge and Shirley Kinge both resided. At the time, claimant and her mother
resided on one side of this duplex, and Michael Kinge resided in the other half
of the residence with his girlfriend, Joanna White, and their child. As law
enforcement officials attempted to search the premises and arrest Michael Kinge
that morning, he confronted officers with a loaded weapon, gunfire was
exchanged, and Michael Kinge died from gunshot wounds that he received during
this confrontation.

Claimant was taken into custody at this time, however, and was interrogated for
approximately seven hours by Senior Investigator Chandler. She was eventually
indicted on numerous criminal charges and, in November, 1990, following a jury
trial, was convicted of burglary first degree, arson third degree, forgery
second degree, hindering prosecution first degree, hindering prosecution
second degree, and criminal possession of stolen property. On January 30,
1991, she was sentenced to serve 18 to 44 years in prison.

In early 1991, during an employment interview with the Central Intelligence
Agency, David Harding admitted that he had fabricated fingerprint evidence and
committed perjury during a homicide investigation. This information was
eventually forwarded to the State Police, and in 1992, it was revealed that
Harding had fabricated evidence and provided false testimony during the criminal
proceedings against claimant. It was also disclosed that Harding, as well as
other members of the New York State Police, had fabricated evidence in other
State Police criminal investigations as well. Specifically, with regard to the
proceedings against claimant, it was determined that Investigator Harding had
falsely testified with regard to the two latent prints that he had supposedly
lifted from the gas can which had been found in the Harris home. As it turned
out, claimant’s fingerprints had not been found on the gas can, his
testimony was completely false, and the fingerprint evidence had been fabricated
by Investigator Harding.

Based upon these revelations, the judgment of conviction against claimant was
vacated on August 25, 1992. Tompkins County District Attorney George Dentes
then moved to dismiss the entire indictment against claimant, and it was
dismissed on November 9, 1992. No attempt was made to reinstate any criminal
charges against claimant for the crimes related to the Harris family murders.

The revelations with regard to Investigator Harding’s conduct in this
case (and allegations of similar misconduct by Harding and members of the State
Police in other cases) led to an investigation ordered by then Governor Mario
Cuomo, who appointed Nelson E. Roth, Esq., as a Special Prosecutor to conduct
the investigation. Pursuant to his duties, Mr. Roth prepared a confidential
report to then Governor George E. Pataki, which was published in 1997 and is
commonly known as the “Roth Report”. Over defendant’s
objections, this report was received into evidence at trial (Exhibit 61). After
having fully reviewed the report, the Court did not consider or rely upon any
of the conclusions or opinions contained therein in its deliberations on this
claim.

DISCUSSION

NEGLIGENT SUPERVISION

In its prior Decision and Order[3], this Court
dismissed any cause of action seeking damages based upon negligent
investigation, but did retain a cause of action alleging negligent training and
supervision. As previously indicated herein, claimant has withdrawn any cause
of action sounding in negligent training and/or hiring. She did, however,
present proof at trial with regard to the negligent supervision cause of action.

In a decision based upon similar police
conduct[4] (which also involved the fabrication
of fingerprint evidence by Investigator Harding), this Court had previously
determined that the State could not be held vicariously liable, under the
doctrine of respondeat superior, for the tortious actions taken by Investigator
Harding when he fabricated fingerprint evidence and subsequently offered
perjured testimony regarding such evidence. This Court determined therein that
these actions represented a gross departure from acceptable police conduct and
were not acts commonly done by employees within the normal scope of their
employment, and therefore could not be attributable to the State vicariously.

In this matter, however, claimant asserts that liability under her negligent
supervision cause of action is not based directly upon the actions of
Investigator Harding, but rather upon the actions or inaction, of his
supervising officers. An employer can be held liable for the torts committed by
its employees even where it cannot be held vicariously liable for the
employees’ actions (State Farm Ins. Co. v Central Parking Sys.,
Inc., 18 AD3d 859).

Initially, the Court must first address defendant’s contention that a
cause of action for negligent supervision does not exist unless another viable
cause of action exists in this Court. Relying upon the Court of Appeals
decision in Brown v State of New York (89 NY2d 172), defendant contends
that a negligent supervision cause of action may not be maintained in the
absence of an actionable underlying tort. In Brown, the Court of Appeals
provided a narrow remedy for damage claims against the State based upon
violations of the State Constitution in certain limited circumstances not
present in this claim. The Court of Appeals also determined that the negligent
training and supervision causes of action alleged in Brown were also
valid. Contrary to defendant’s argument, this Court finds no language in
Brown specifically stating that such causes of action were dependent upon
the cause of action alleging violations of the State Constitution.

Furthermore, it is abundantly clear that under different fact patterns, a claim
based solely upon allegations of negligent supervision may be maintained against
the State. For example, claims alleging negligent supervision of inmates by
correction officers within a State correctional facility have long been
considered viable, notwithstanding the lack of another underlying actionable
tort against the State (seee.g. Sanchez v State of New York, 99
NY2d 247).

In this Court’s opinion, the better view is whether the underlying
tortious activity, even if not actionable against the State, can be directly
attributed to, or proximately caused by, negligent supervision. For example,
with reference to the situations previously referred to involving inmate
assaults within a correctional facility, even though the actual assault by
another inmate does not create a cause of action against the State, the
negligent supervision of that assailant by correctional personnel can result in
liability being imposed against the State.

In the context of the instant claim, even though the tortious activity of
Investigator Harding has been determined to be outside the scope of his
employment, and therefore not forming a basis for a direct cause of action
against the State based upon respondeat superior, the alleged negligent
supervision of Investigator Harding by his superior officers, if established, is
sufficient to establish liability. It is therefore crucial to determine what
information was available to Investigator Harding’s supervisors, and in
particular, Senior Investigator McElligott, during the course of their
investigation and prosecution of claimant. Significantly, the issue before the
Court is not whether Senior Investigator McElligot actually believed that
Investigator Harding had fabricated evidence in this case, but rather whether
his alleged lack of supervision allowed Investigator Harding to proceed,
undeterred and undetected, with his scheme to fabricate such evidence in an
environment that provided no checks and balances over his actions.

This cause of action is centered upon the actions taken by Investigator
Harding, and the process he followed, in fabricating fingerprint evidence which
had the effect of establishing claimant’s presence at the Harris family
home. In spite of this “evidence”, it should be noted that at all
times throughout the criminal proceedings against her, claimant adamantly denied
any participation in, or knowledge of, the crimes committed by her son at the
Harris home.

As previously indicated, however, a metal gas can had been recovered from the
living room in the Harris home, and this can was subject to intense examination
for possible fingerprint evidence. On December 26, 1989, three days after the
murder investigation had begun, Investigator Harding reported to Senior
Investigator McElligott that he was only able to locate three very faint and
poor quality latent fingerprints on the can. A Kodak representative was
contacted to enhance and photograph these prints with oblique lighting, but this
technique proved unsuccessful. The can was taken to the State Automated
Fingerprint Identification System (SAFIS) for additional analysis, but again no
usable prints were obtained. As the investigation continued, Investigator
McElligott continued to make inquiries regarding the fingerprints, but
Investigator Harding could not provide him with any usable information to assist
in the investigation.

On February 3, 1990, after Shirley Kinge had been identified as a suspect, and
only after Investigator Harding had gone undercover and met with her,
Investigator Harding then reported to Senior Investigators McElligott and
Chandler that he had been able to match two latent fingerprints from the metal
gas can with claimant’s fingerprints. Although Investigator McElligott
recalled at that time that there had not been any usable prints obtained from
the gas can (based on Harding’s earlier reports), the State Police
nevertheless now had direct evidence placing claimant at the Harris home.

After claimant was taken into custody on the morning of February 7, 1990, she
was interviewed at length by Senior Investigator Chandler and Investigator
George Clum. Her interrogation lasted approximately seven hours. Investigator
Clum testified that at the conclusion of the interview, Senior Investigator
Chandler remarked, based upon her demeanor and responses to questioning, that if
not for the fingerprint evidence, he would believe that claimant had not been in
the house. According to his testimony, Investigator Clum, at the time, agreed
with Senior Investigator Chandler’s analysis.

Several days after claimant’s arrest, Investigator Harding testified at a
preliminary hearing at the Town of Dryden Justice Court. Senior Investigator
McElligott confronted Investigator Harding immediately following this hearing,
when he observed Investigator Harding in possession of claimant’s
fingerprint card, without any evidence tag or evidence bag. The improper
handling of this fingerprint evidence was clearly a violation of State Police
protocols regarding the preservation of evidence, a fact which Senior
Investigator McElligott was well aware.

In this Court’s opinion, it is of critical importance that following this
confrontation, Senior Investigator McElligott decided not to make any official
report of Investigator Harding’s mishandling of this evidence, even though
such conduct constituted a clear violation of State Police rules and
regulations. Senior Investigator McElligott certainly knew that the fingerprint
evidence was a crucial piece of evidence implicating claimant in these crimes,
and that Investigator Harding, by his mishandling of evidence, had jeopardized
the admissibility of such evidence at any criminal trial.

Furthermore, in this Court’s opinion, Senior Investigator
McElligott’s conduct following this confrontation is similarly
questionable. At trial, Senior Investigator McElligott testified that he never
took any further action to insure that the fingerprint evidence, and in
particular the evidence card, was properly handled from that point forward.
Senior Investigator McElligott certainly had the authority to take possession of
the fingerprint card at that time and personally insure that it was properly
tagged and handled. At the absolute minimum, he should have taken some action
to confirm that Investigator Harding had fully complied with his directive to
preserve this evidence. As it turns out, Senior Investigator McElligott did
nothing but turn a blind eye to this situation, even though he knew full well
that such evidence was of extreme importance in the prosecution of claimant.

Additionally, prior to claimant’s criminal trial, Investigator Martin E.
Hughes, who was trained in fingerprint classification, identification, and
processing, met with District Attorney Dentes to assist him in his preparation
for the upcoming trial. During this preparation, Investigator Hughes noted
several problems with the handling of the fingerprint evidence by Investigator
Harding. Specifically, the latent fingerprints had not been photographed prior
to lifting from the gas can; no markings had been made on the can to identify
the origin of the fingerprints; and the fingerprint “lifters” had
been cut down from their original size.

Furthermore, during the trial, it was learned that Investigator Harding had
improperly “wiped” the gas can, thereby removing any evidence that
fingerprints had ever been on the can in the first place. Although there is no
evidence or testimony to establish that Senior Investigator McElligott was aware
of these violations of protocol in the accumulation and preservation of
evidence, such deficiencies further support the contention that Investigator
Harding, in this instance, was not subject to any supervision whatsoever during
the prosecution of claimant.

Based on the foregoing, the Court finds that Senior Investigator McElligott,
who had previously expressed doubt as to the existence of any usable fingerprint
evidence whatsoever and had concerns as to the reliability of the evidence
produced by Investigator Harding, by his lack of action and oversight, provided
Investigator Harding with the opportunity not only to fabricate fingerprint
evidence, but also to then proceed, without challenge or any realistic fear of
detection, in providing false testimony regarding such evidence. Such action,
or more accurately the absence of any action in supervision or oversight, is
particularly offensive when minimal supervision could have prevented the use of
such tainted evidence, which was of critical importance in the prosecution and
conviction of claimant.

In sum, during the course of this investigation, Senior Investigator
McElligott, as Investigator Harding’s supervisor, had directly observed
Investigator Harding mishandle crucial fingerprint evidence. Not only did he
fail to report this misconduct, he failed to take any action whatsoever to
insure that such evidence was then properly secured and preserved. The Court
finds that such conduct established a complete lack of supervision, which
certainly rises to the level of negligence, and claimant has therefore
established her cause of action for negligent supervision.

MALICIOUS PROSECUTION

In order to succeed on a cause of action based upon the tort of malicious
prosecution, a claimant must establish (1) the commencement or continuation of a
criminal proceeding by the defendant against a claimant, (2) a determination of
the proceeding in favor of the accused, (3) the absence of probable cause for
the criminal proceeding, and (4) actual malice on the part of the defendant
(Broughton v State of New York, 37 NY2d 451, 457, cert denied sub nom.
Schanbarger v Kellogg, 423 US 929).

In this particular claim, there is no dispute that legal proceedings were
commenced against claimant, which began with her arraignment on February 7,
1990. There is also no dispute that these proceedings were subsequently
terminated in her favor, when the entire indictment against her was dismissed on
November 9, 1992. Accordingly, this Court must determine whether probable cause
existed for the prosecution of claimant, and whether such prosecution was
conducted with actual malice.

At the outset, and as previously discussed, there is no dispute that law
enforcement authorities, during the course of their investigation and subsequent
prosecution of claimant, relied upon fingerprint evidence which ultimately was
found to have been fabricated by Investigator Harding. Additionally, there is
no dispute that both Investigator Harding and Investigator Lishansky provided
perjured testimony in the proceedings against claimant. There is also no
dispute that this fabricated evidence tied claimant to the scene of the
quadruple homicides, despite her adamant protestations to the contrary.

In relatively simple terms, the issue before the Court is whether law
enforcement authorities would have prosecuted claimant for the serious arson and
burglary charges occurring at the Harris family home if, at the time, they did
not have the fingerprint evidence placing her at the scene of the crime.
Although such a question is simply stated, the Court has the difficult task of
determining whether probable cause existed for the arrest and prosecution of
claimant when this fabricated evidence is eliminated, after the fact, from the
sum total of evidence in existence at that time.

Obviously, it is not for this Court to determine whether claimant actually
committed the crimes occurring at the Harris family home, but rather whether law
enforcement personnel could reasonably believe that she had participated in
those crimes with her son. Her ultimate guilt or innocence of these crimes is
not before this Court for resolution.

Probable cause is based upon a reasonable ground for belief of guilt
(Brinegar v United States, 338 US 160, 175). It has been defined as
consisting of such facts and circumstances which would lead a reasonably prudent
person in like circumstances to believe that a claimant is guilty (Hyman v
New York Cent. R.R. Co., 240 NY 137, 143). This belief “must not only
be reasonable, but it must appear to be at least more probable than not that a
crime has taken place and that the one arrested is its perpetrator, for conduct
equally compatible with guilt or innocence will not suffice.” (People v
Carrasquillo, 54 NY2d 248, 254).

In this case claimant, within hours after the crimes committed at the Harris
family home, forged the name of Dolores Harris, one of the victims, to a credit
card, went shopping with her son, and used this card to purchase personal items
at various shopping malls in the central New York area. As a result of these
actions, she was identified as a suspect, based upon composite sketches, well
before any fingerprint “match” was provided by Investigator Harding.
Furthermore, once she had been identified as a potential suspect, the State
Police continued their investigation and learned that claimant had previously
worked for the individual who had developed the area in which the Harris home
was located, and that she cleaned houses and other premises for a living. These
facts, in this Court’s opinion, were sufficient to provide police with a
reasonable suspicion that claimant, who was familiar with the area, could have
also cleaned the Harris home to remove any incriminating evidence prior to the
arson.

It is significant that claimant was identified as a suspect prior to the
fabrication of the fingerprint evidence by Investigator Harding. Indeed, it was
only after she had been identified as a suspect (through her use of the credit
card) that Investigator Harding had the opportunity to go undercover, meet with
claimant, and presumably obtain items from which her fingerprints could be
lifted.

In this particular case, the Court therefore finds that it was both reasonable
and logical for law enforcement personnel to view claimant as a principal
suspect in all of the crimes which occurred at the Harris family home, at the
point in time when she was identified as the person possessing and using the
credit card belonging to Dolores Harris, which use occurred within hours after
the homicides were discovered. Based upon her use of the credit card, the Court
therefore finds that probable cause existed for her arrest.

The inquiry as to the existence of probable cause, however, does not end at
this point. Although probable cause existed for the arrest of claimant, the
Court must also determine whether such probable cause continued throughout the
course of the criminal investigation and subsequent proceedings against her, a
distinction which has been previously recognized (Maxwell v City of New
York, 156 AD2d 28; Mejia v City of New York, 119 F Supp 2d 232).

From the testimony presented, it appears to this Court that probable cause to
continue with the criminal proceedings against claimant for the crimes which
occurred at the Harris family home was based upon three primary factors. The
first factor, as previously mentioned, was claimant’s possession and use
of a credit card belonging to Dolores Harris, coupled with the fact that such
use occurred within hours after discovery of the homicides. As discussed
herein, claimant’s use of this credit card, and her subsequent
identification as the person using the card, led police to view her as a suspect
in these heinous crimes. A second factor relied upon by police was the
identification provided by Professor Sutphin which placed claimant near the
Harris family home at the time of these crimes. As previously indicated herein,
this identification, however, was, for all practical purposes retracted by
Professor Sutphin a short time before claimant’s arrest. Once Professor
Sutphin revised his prior statement, the State Police had no reliable eyewitness
evidence placing claimant at or near the scene at a time when the crimes
occurred. The third factor, obviously, was the fingerprint evidence produced by
Investigator Harding which was eventually (well after claimant’s
conviction) revealed to be completely fabricated.

Therefore, without the identification provided by Professor Sutphin (which was
essentially retracted) and excluding the tainted fingerprint evidence, the only
significant evidence tying claimant to the crimes which occurred at the Harris
home consisted of her possession and use of the Dolores Harris credit card. The
Court notes that following her interrogation, claimant did admit to the
possession, forgery, and use of this credit card.

Therefore, the issue now becomes whether claimant’s use and possession of
this credit card, standing alone, established sufficient probable cause to
prosecute her for the crimes occurring at the Harris home. Defendant relies
upon the “recent exclusive possession rule” as justification for its
prosecution of claimant for these crimes. This rule has been defined as
follows: “If a defendant is found in exclusive possession soon
after the crime and there is no evidence indicating that he may have received
the stolen property from someone else, the only inference that can be drawn is
that defendant is the thief.” (People v Baskerville, 60 NY2d 374,
382). Such an inference is sufficient to establish a prima facie case, and if
unexplained, enables a jury to establish guilt beyond a reasonable doubt
(People v Galbo, 218 NY 283).

George M. Dentes, the Tompkins County District Attorney who prosecuted
claimant, testified at trial that under this rule, claimant’s use of the
credit card provided sufficient evidence to justify his prosecution of claimant
for the crimes committed at the Harris home. In his testimony, he acknowledged
that the fabricated fingerprints constituted the only evidence directly placing
claimant at the Harris home, but nevertheless testified that in his opinion,
claimant’s use of the credit card would have been sufficient to sustain a
conviction for the crimes committed at the Harris home, based upon the
“recent exclusive possession” rule.

While this Court has great respect for Mr. Dentes, his testimony at this trial
was directly at odds with the actions taken by him after Investigator
Harding’s misconduct was revealed. At that time, Mr. Dentes moved for
dismissal of the entire indictment against claimant. In his affidavit in
support of this motion, Mr. Dentes stated that “[t]he key proof of
defendant’s presence at the Harris home was the testimony of Inv. David
Harding, of the New York State Police.” Since this evidence had been
fabricated, he then stated that “[i]t thus appears that there is no
reliable evidence that defendant was at the Harris home.” (See Exhibit
24).

Although Mr. Dentes testified at trial that another reason for his decision to
seek dismissal of the indictment was the
“stink”[5] of the State Police
evidence-tampering scandal and investigation, the Court accords great weight to
his statements made in support of his application for dismissal. At that time,
District Attorney Dentes was quite explicit that without the fingerprint
evidence there was no reliable evidence placing claimant at the Harris home, and
as a result there existed no basis on which to continue with proceedings against
claimant for those crimes which occurred at the Harris home.

Testimony at trial also established that this opinion had been expressed in the
early stages of the investigation against claimant. Following their extensive
interrogation of claimant, Senior Investigator Chandler and Investigator Clum
agreed that without the fingerprint evidence, they would have believed claimant
when she maintained throughout her interrogation that she had not been present
at the Harris home.

Based on the foregoing, therefore, it is the opinion of this Court that without
the fabricated fingerprint evidence, it is reasonable to assume that claimant,
despite her use of the stolen credit card, would not have been prosecuted for
any of the crimes occurring at the Harris family home, due to the absence of any
probable cause linking her to these specific crimes.

In order to succeed with her malicious prosecution claim, however, claimant
must also establish that the criminal proceedings against her were conducted
with “actual malice”. This element does not require that a claimant
must establish that the defendant was motivated by spite or hatred, but rather
that the proceeding was conducted due to a wrong or improper motive (Nardelli
v Stamberg, 44 NY2d 500; Maxwell v City of New York, 156 AD2d 28).
Actual malice may be established from gross and culpable negligence, such as a
failure to make reasonable inquiries before starting proceedings (Martin v
City of Albany, 42 NY2d 13), or from the reckless disregard of the rights of
the defendant (Boose v City of Rochester, 71 AD2d 59).

In this Court’s opinion, Senior Investigator McElligott’s negligent
supervision (previously discussed herein), which in effect provided Investigator
Harding with ample opportunity to fabricate fingerprint evidence placing
claimant at the scene of the crimes, is clearly sufficient to establish a
blatant disregard of claimant’s rights, and as such satisfies the
“actual malice” element of the malicious prosecution cause of
action.

The Court would be remiss if it did not refer to a prior decision of this
Court, Prentice v State of New York, previously referred to
herein[6], on which both parties relied.
Prentice was also a malicious prosecution claim which was based upon
allegations of evidence tampering by Investigator Harding. Although the
fabrication of fingerprint evidence by Investigator Harding was also
conclusively established in that claim, this Court nevertheless dismissed the
malicious prosecution claim. A crucial distinction exists, however, in these
two cases. In Prentice, following the revelation of Investigator
Harding’s misconduct, Mr. Prentice was reindicted by a grand jury, and
convicted after trial. His conviction from that second trial was later
reversed, and he eventually was acquitted after a third trial, leading to his
malicious prosecution claim. In the instant claim, however, not only was there
no effort made to reindict claimant, but District Attorney Dentes specifically
acknowledged that there was no reliable evidence on which to proceed against
claimant.

In sum, the actions of Senior Investigator McElligott, or in this case, an
unjustified and complete lack of supervision and control, allowed Investigator
Harding the time and opportunity to fabricate fingerprint evidence which
ultimately became the only significant evidence placing claimant at the Harris
home. There can be no dispute that such fabricated evidence played a key role
in her conviction for these crimes. Without such evidence, this Court finds
that probable cause did not exist to prosecute claimant for any of the crimes
which occurred at the Harris family home. Claimant has established her
malicious prosecution cause of action.

In retrospect, and based on these findings, this claim should have been a
relatively easy one on which to determine the issue of liability. Claimant,
however, obviously did not appear before this Court with “clean
hands”, and she has not engendered any great sympathy from this Court.
Claimant’s own admitted criminal conduct in possessing, utilizing, and
forging the signature of Dolores Harris on a credit card brought the focus of
the investigation upon her. Despite her testimony to the contrary at this
trial, the Court finds that claimant was a willing participant with her son in
this scheme to use credit cards belonging to the Harris family. Even if the
Court accepts her testimony that she was completely unaware of what transpired
at the Harris home, her willingness to participate has been established by her
actions in forging a signature to a credit card, and then using that card, which
was indisputably obtained from the Harris home, to purchase personal items for
her own benefit within hours of the burglary, murders, and arson.

Even so, such criminal conduct cannot be used as a shield by the State Police
to either justify or excuse their actions which directly led to claimant’s
conviction. As this Court has found, minimal supervision over Investigator
Harding would have prevented his reprehensible conduct in the fabrication of
fingerprint evidence. In this Court’s opinion, such minimal supervision
would also have prevented the prosecution of claimant for the horrific crimes
committed by her son at the Harris home.

Notwithstanding the fact that the Court has found in her favor, claimant should
take no satisfaction in this decision. She should be ashamed of her criminal
conduct. However, throughout history a crucial question for society has been
how to protect its citizens from abuses by those individuals who swear to guard
them and enforce the laws. Put another way, who guards the guardians? The
answer is: the Courts.

Accordingly, based upon the foregoing, this Court finds the defendant liable to
the claimant upon both her negligent supervision and malicious prosecution
causes of action.

Any motions not heretofore ruled upon are hereby denied.

The Clerk of the Court is hereby directed to enter an interlocutory judgment on
the issue of liability in accordance with this decision. The Court will set
this matter down for trial on the issue of damages as soon as practicable.